Exhibit 10.1
EXHIBIT D
STOCK TRANSFER RESTRICTION AND
REGISTRATION RIGHTS AGREEMENT
________ __, 2006
THIS STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of ________ __, 2006, is by and among (1) Clear Channel
Outdoor Holdings, Inc., a Delaware corporation (the "Company"), (2) Mark T.
Lieberman, Deborah S. Lieberman, The Trust (Living) of Marianne Lieberman and
The Trust (Living) of Carolyn M. Grant (collectively, the "Principal
Stockholders"), and (3) Molly A. Lieberman, Karen Lieberman-Daly, Richard Frick
and the Lieberman Business Trust (collectively, and together with the Principal
Stockholders, the "Stockholders"). Reference is made to that certain Stock
Purchase Agreement, dated as of May 20, 2006 (the "Stock Purchase Agreement"),
by and among the Company, Clear Channel Outdoor, Inc., a Delaware corporation
and wholly-owned subsidiary of the Company (the "Buyer"), In-ter-space Services
Inc., a Pennsylvania corporation ("ISI"), and the Stockholders (in their
capacity as the holders of all of the capital stock of ISI). All capitalized
terms used but not defined in this Agreement will have the respective meanings
ascribed thereto in the Stock Purchase Agreement.
WITNESSETH
WHEREAS, this is the Stock Transfer Restriction and Registration Rights
Agreement referred to in the Stock Purchase Agreement; and
WHEREAS, pursuant to the Stock Purchase Agreement, the Buyer will acquire
all of the outstanding shares of ISI from the Stockholders; and
WHEREAS, the purchase price Buyer shall pay to the Stockholders for their
shares of ISI shall consist of cash and shares of CCO Common; and
WHEREAS, the Stockholders' agreement to certain restrictions on their
subsequent transfer of shares of CCO Common, and the grant by the Company to the
Stockholders of certain registration rights, all as more fully set forth in this
Agreement, are material inducements to the Company and the Stockholders to enter
into the Stock Purchase Agreement and consummate the transactions contemplated
thereby;
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the Company's and the Stockholders' obligations, respectively, to
consummate the Stock Purchase Agreement and transactions contemplated thereby;
NOW, THEREFORE, in consideration of the foregoing and mutual covenants and
agreements hereinafter set forth, and for other consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 1
ARTICLE I.
RESTRICTIONS ON TRANSFER OF RESTRICTED SECURITIES.
1.1. Certain Definitions. For purposes of this Agreement,
(a) "Affiliate" means, with respect to a specified person or entity,
any other person or entity that, directly or indirectly, through one or
more intermediaries, controls, or is controlled by or is under common
control with, the specified person or entity. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used
with respect to any entity, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies
of such entity, whether through the ownership of voting securities, by
agreement or otherwise.
(b) "Permitted Transfer" means any of the following Transfers in which
the transferee executes and delivers to the Company a counterpart signature
page to this Agreement, agreeing that such transferee and the Restricted
Securities Transferred to such transferee will be bound by all of the terms
and conditions of this Agreement: (i) a Transfer by a Stockholder that is a
natural person, without consideration and for bona fide estate planning
purposes, to the spouse of such Stockholder, to a natural or adoptive child
of such Stockholder or to a trust established for the benefit of such
spouse and/or children, or (ii) a Transfer by a Stockholder that is not a
natural person to any Affiliate of such Stockholder or to any beneficiary,
officer, director, partner, member or retired partner or member of such
Stockholder or its Affiliates (collectively, "Related Parties").
(c) "Restricted Securities" means (i) all shares of CCO Common issued,
or to be issued in the future, to the Stockholders pursuant to the Stock
Purchase Agreement, including without limitation, any shares of CCO Common
that are or were Holdback Shares and any shares of CCO Common that
constitute a portion of any Earnout Amount payable thereunder and (ii) any
equity securities of the Company (and any other securities of the Company
that are, or may be with the passage of time or the occurrence of one or
more events, convertible into equity securities of the Company), issued in
respect of the shares described in clause (i), including without
limitation, pursuant to any stock dividend, stock split or recapitalization
of the Company.
(d) "Transfer" means any sale, assignment, grant of option to purchase
(but only to the extent an optionee's exercise of such option on the first
date on which it becomes exercisable would otherwise be a Transfer
hereunder), pledge, hypothecation, transfer or other disposition or
encumbrance of any Restricted Security, or any beneficial interest therein,
or the entry into any binding contract, agreement or arrangement providing
for any of the foregoing.
1.2. Restrictions on Transfer.
(a) Restrictions Applicable to All Stockholders. No Stockholder may
voluntarily Transfer any Restricted Security unless (i) the requirements of
Article II have been satisfied in full and (ii) the Transfer is either (A)
a Permitted Transfer or (B) a bona
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 2
fide Transfer, in which the consideration is payable solely in cash or cash
equivalents, to a third party following full compliance with the
requirements of Section 1.3.
(b) Restrictions Applicable to Only Principal Stockholders.
(i) One Year Restriction. No Principal Stockholder may
voluntarily Transfer any Restricted Security (other than pursuant to a
Permitted Transfer) prior to the one-year anniversary of this
Agreement.
(ii) Two Year Restriction. No Principal Stockholder may
voluntarily Transfer any Restricted Security (other than pursuant to a
Permitted Transfer) prior to the two-year anniversary of this
Agreement, other than the Transfer after the one-year anniversary of
this Agreement of a number of shares of CCO Common that, together with
all other such Transfers by such Principal Stockholder, does not
exceed 50% of the aggregate number of shares of CCO Common issued to
such Stockholder on or before the date of such Transfer pursuant to
the Stock Purchase Agreement, including without limitation, any shares
of CCO Common that are or were Holdback Shares and any shares of CCO
Common that constitute a portion of any Earnout Amount payable
thereunder.
(c) Non-Compliant Transfers Void. Any voluntary Transfer of Restricted
Securities that is not made in full compliance with the requirements of
this Section 1.2 will be null and void, and the Company (and any transfer
agent for the securities of the Company) will refuse to recognize such
attempted Transfer and to reflect on its records any change in record
ownership of Restricted Securities pursuant to such attempted Transfer.
(d) Hedging Permitted. Notwithstanding anything to the contrary
herein, the Stockholders shall be permitted to engage, directly or
indirectly, in any zero cost collar or similar type of collar hedging
transactions, in accordance with applicable securities laws. Stockholders
shall not be permitted to engage in any "short sales" (as defined in Rule
200 of Regulation SHO promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")); provided, however, that any "short
sales" engaged in by a brokerage firm solely in connection with
establishing the above referenced collars shall be permitted.
1.3. Rights of First Refusal.
(a) Sale Notice. Whenever and as often as any Stockholder desires to
sell any Restricted Securities in reliance on Section 1.2(a)(ii)(B), such
Stockholder (the "Selling Holder") must give the Company a notice to such
effect (the "Sale Notice"), setting forth (i) the number of Restricted
Securities that the Selling Holder desires to sell (the "Offered
Securities"), (ii) the name of the person to whom the Selling Holder
desires to make such sale (the "Transferee") or that the Selling Holder
desires to effect an open market sale of the Offered Securities and (iii)
the other material terms and conditions of such sale, if any.
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 3
(b) Company's Right to Purchase.
(i) Right to Purchase. Upon receipt of a Sale Notice, the Company
will have the right and option (but not the obligation) to purchase
all or any portion of the Offered Securities at the Market Price (as
defined in Section 1.3(b)(iii)). The Company will be entitled to
exercise this right at any time before 5:00 pm Central Time on the
next Trading Day (as defined hereafter) immediately following the day
on which the Company receives the Sale Notice (the "Company Exercise
Period"). A "Trading Day" is any day on which the New York Stock
Exchange is open for trading for at least four hours (excluding any
period of time during which trading of CCO Common on the New York
Stock Exchange is suspended or halted).
(ii) Manner of Exercise. To exercise such purchase right, the
Company must give a notice of exercise (a "Company Exercise Notice")
to the Selling Holder during the Company Exercise Period. The Company
Exercise Notice must set forth the number of Offered Securities that
the Company is willing to purchase and must contain the Company's
irrevocable offer to purchase such Offered Securities in accordance
with Section 1.3(c). Failure of the Company to deliver a valid Company
Exercise Notice during the Company Exercise Period will be deemed a
waiver of the Company's purchase right for the proposed transaction
described in the Sale Notice.
(iii) Market Price. The "Market Price" will be the greater of (A)
the closing price of the CCO Common on the New York Stock Exchange on
the Trading Day immediately preceding the day on which the Selling
Holder delivers the Sale Notice to the Company (or, if the Sale Notice
is delivered later than 4:00 p.m., New York City time, on a Trading
Day, the closing price of the CCO Common on the New York Stock
Exchange on the Trading Day on which the Sale Notice is delivered to
the Company) and (B) the closing price of the CCO Common on the New
York Stock Exchange on the Trading Day immediately preceding the day
on which the Company delivers the Company Exercise Notice to the
Selling Holder (or, if the Company Exercise Notice is delivered later
than 4:00 p.m., New York City time, on a Trading Day, the closing
price of the CCO Common on the New York Stock Exchange on the Trading
Day on which the Company Exercise Notice is delivered to the Selling
Holder).
(c) Closing of Rights of First Refusal. If the Company offers to
purchase any or all of the Offered Securities pursuant to Section
1.3(b)(ii), the closing of the purchase and sale of such Offered Securities
will occur on the third Trading Day immediately following the day on which
the Company delivers the Company Exercise Notice. At least one Trading Day
prior to such date, the Selling Holder must deliver wire transfer
instructions (if funds are to be wired) to the Company. The consummation of
the purchase and sale of such Offered Securities will be effected by the
Selling Holder's delivery to the Company of the Offered Securities (free
and clear of any restrictions, liens or claims) and such other instruments
of transfer as the Company may reasonably request (including delivery of
the certificate(s) representing the securities being purchased,
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 4
properly endorsed for transfer), against payment by the Company of the
purchase price therefor.
(d) Failure to Purchase All Offered Securities. If the Company does
not consummate the purchase of all of the Offered Securities pursuant to
Section 1.3(c), the Selling Holder may sell the Offered Securities not so
purchased. Any sale pursuant to this Section 1.3(d) must be consummated
during the 90-day period commencing on the expiration of the Company
Exercise Period. Any Transfer of such Offered Securities that does not
comply with the terms of this Section 1.3(d) will constitute a new sale
that will be subject to the requirements of this Section 1.3 de novo.
1.4. Indirect Transfers. If a Related Party to which Restricted Securities
have been Transferred in a Permitted Transfer is the subject of any event or
transaction (or series of related events or transactions) by which such Related
Party ceases to be a Related Party of the Stockholder originally holding such
Restricted Securities (an "Indirect Transfer"), then such Indirect Transfer will
be deemed to be a voluntary Transfer of the Restricted Securities held by such
Related Party on the date of such Indirect Transfer and subject to the
requirements and Company purchase rights set forth in Section 1.3.
ARTICLE II.
SECURITIES LAWS PROVISIONS.
2.1. Securities Laws Compliance. No Stockholder may voluntarily Transfer
Restricted Securities unless (a) a registration statement is then in effect
under the Securities Act covering such Transfer and such Transfer is made in
accordance with such registration statement, or (b) (i) the Stockholder notifies
the Company of the proposed Transfer and furnishes the Company with a written
statement of the circumstances surrounding the Transfer, and (ii) if requested
by the Company, the Stockholder furnishes the Company with an opinion of counsel
satisfactory to the Company, at the Stockholder's expense, that such Transfer
will not require registration of the subject Restricted Securities under the
Securities Act or any filing or registration under applicable state securities
and blue sky laws; provided, however, that no opinion of counsel will be
required if the Transfer is pursuant to Rule 144 and the written statement
furnished to the Company pursuant to clause (i) above contains sufficient
information to enable the Company, in consultation with its counsel, to
determine that the transferor has complied with the applicable requirements of
Rule 144.
2.2. Required Legends. Each certificate representing securities of the
Company will bear a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
WITHOUT SUCH REGISTRATION OR THE DELIVERY TO THE ISSUER OF AN OPINION OF
COUNSEL, SATISFACTORY TO THE ISSUER, THAT SUCH DISPOSITION WILL NOT REQUIRE
REGISTRATION OF SUCH SECURITIES UNDER
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 5
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS."
The Company will reissue, without such legend, any certificate representing
securities of the Company, at the request of the holder thereof, at such time as
all of the securities represented by such certificate become eligible for resale
without compliance with the registration or qualification provisions of
applicable federal and state securities laws.
ARTICLE III.
REGISTRATION RIGHTS
3.1. Registrable Stock. "Registrable Stock" means all of the shares of CCO
Common that constitute Restricted Securities; provided, however, that such
shares will cease to be "Registrable Stock" (a) when they have been sold to or
through a broker or dealer or underwriter in a distribution to the public or
otherwise on or through the facilities of the national securities exchange,
national securities association or automated quotation system on which the CCO
Common is listed, (b) when a registration statement with respect to the sale of
such shares has become effective under the Securities Act, and such shares have
been disposed of in accordance with such registration statement, (c) when such
shares have ceased to be outstanding or (d) when held by a person who may sell
all of his, her or its shares of Registrable Stock under Rule 144 within a
90-day period.
3.2. Demand Registration Rights.
(a) Demand Event. For purposes of this Article III, a "Demand Event"
means the death of any of the Principal Stockholders.
(b) Demand. By written notice to the Company within ninety (90) days
following a Demand Event (a "Demand"), the Stockholders holding not less
than a majority of the Registrable Stock will have the right to demand the
registration of the sale of all or any part of their Registrable Stock (a
"Demand Registration") under the Securities Act on Form S-1 (or its
equivalent) (a "Long Form Registration") or, if available to the Company,
on Form S-3 (or its equivalent) (a "Short Form Registration"). Each Demand
must specify the approximate number of shares of Registrable Stock to be
registered and the Stockholders' intended method of distribution of such
shares. The Stockholders, collectively, will be entitled to make only one
Demand pursuant to this Agreement (excluding any Demand that the Company
elects to not honor pursuant to Section 3.2(c)).
(c) Company Right to Dishonor Demand. The Company, at its election,
may decline to honor a Demand at any time prior to the filing of a
registration statement with respect to the Demand:
(i) if the aggregate expected offering price of the Registrable
Stock covered by the Demand (before deduction of underwriting
discounts and expenses of sale), calculated on the basis of the
average closing price per share of CCO Common on the New York Stock
Exchange for the 15 consecutive trading days
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 6
immediately preceding any day between (and including) the date of the
Demand and the date on which the registration statement with respect
to the Demand is filed, is less than $10,000,000 (if a Long Form
Registration) or $5,000,000 (if a Short Form Registration);
(ii) that is made within 180 days after the effective date of any
Company registration with respect to which the Company provided a
Piggyback Notice to the Stockholders; or
(iii) if the Company notifies the Stockholders making a Demand
that it intends to file a registration statement other than pursuant
to this Section 3.2 (a "Company Registration") and in which the
Company intends to include the shares of Registrable Stock of such
Stockholders that are the subject of the Demand within 60 days. In
such event, no further Demand may be made until the first to occur of
(A) the date that is 180 days after the effective date of such Company
Registration, (B) the date on which such Company Registration is
abandoned or withdrawn and (C) the date on which all securities
registered pursuant to such Company Registration have been sold in
accordance with the intended method of distribution thereof. The
Company will promptly notify the Stockholders of the occurrence of any
circumstance described in clause (B) or (C) above.
3.3. Piggyback Registration Rights. If the Company proposes to register the
sale or issuance of any of its equity securities under the Securities Act (other
than (a) a registration solely in connection with an employee benefit or stock
ownership plan, (b) a registration relating to a transaction covered by Form S-4
(or successor form), including a Rule 145 transaction or (c) a registration with
respect to a transaction relating solely to the sale of debt or convertible debt
instruments) and the registration form to be used may be used for the
registration of the sale of Registrable Stock (a "Piggyback Registration"), the
Company will give at least twenty (20) days prior notice to the Stockholders of
its intention to effect such a registration (each, a "Piggyback Notice").
Subject to Section 3.4(c), the Company will include in the Piggyback
Registration all Registrable Stock that the Stockholders designate by notice
given to the Company within fifteen (15) days after the Company's delivery of
the Piggyback Notice. The Stockholders will be entitled to participate in three
Piggyback Registrations pursuant to this Agreement.
3.4. Underwritten Offerings.
(a) Selection of Underwriters. The Demand Registration will not be
underwritten. The lead managing underwriter for any underwritten Piggyback
Registration will be selected by the Company.
(b) Underwriting Agreements. The Stockholders agree that in any
underwritten registration involving Registrable Stock, the Stockholders
desiring to have their shares of Registrable Stock included in such
registration will (i) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected pursuant to Section
3.4(a), (ii) sell such Registrable Stock on the basis provided in any
underwriting arrangements relating thereto and (iii) complete and execute
all questionnaires, powers of attorney, indemnities, underwriting
agreements and other
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 7
documents required under the terms of such underwriting arrangements;
provided, however, that the Stockholders will not be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding the Stockholders and their
intended method of distribution of Registrable Stock.
(c) Cut Backs on Piggyback Registrations. If the managing underwriters
of an underwritten Piggyback Registration advise the Company in writing
that, in their opinion, the number of securities requested to be included
in such registration exceeds the number that can be sold in an orderly
manner in such offering within a price range acceptable to the Company, the
Company will include in such registration (i) first, the securities
proposed to be sold by the Company, and (ii) second, the Registrable Stock
held by the Stockholders and the other securities requested to be included
in such registration, on a pro rata basis.
3.5. Withdrawal From and Termination of Registration.
(a) Withdrawal by the Stockholders. If the Stockholders make a Demand
pursuant to Section 3.2 or elect to participate in a Piggyback Registration
pursuant to Section 3.3, and thereafter one of more of such Stockholders
elect to withdraw from or reduce their participation in such registration
such that the Stockholders, collectively, will not have covered in the
registration statement for such registration at least 50% of the
Registrable Stock specified in the Demand or in the notice of participation
in the Piggyback Registration (other than, in any such case, as a result of
(i) the Company's postponement, termination or withdrawal of such
registration pursuant to Section 3.2(c) or Section 3.5(b), (ii) the
Company's reduction of the number of Stockholder shares eligible for
participation in the Piggyback Registration pursuant to Section 3.4(c),
(iii) any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, or (iv) the breach of
this Agreement by the Company), such event will constitute a "Stockholder
Withdrawal." A Demand Registration that is subject to a Stockholder
Withdrawal will constitute the Stockholders' sole available Demand, and a
Piggyback Registration that is subject to a Stockholder Withdrawal will
constitute one of the Stockholders' available Piggyback Registrations, as
the case may be, unless the Stockholders elect to reimburse the Company for
all Registration Expenses incurred by the Company and its Affiliates in
connection with such registration.
(b) Termination of Piggyback Registration. The Company will have the
right to terminate or withdraw any Piggyback Registration prior to the
effectiveness of the registration statement filed in connection therewith;
provided, however, that the Company must pay all Registration Expenses
associated with such terminated or withdrawn registration and such
terminated or withdrawn registration will not be deemed to constitute one
of the Stockholders' available Piggyback Registrations.
3.6. Registration Procedures. In connection with the Demand Registration
and each Piggyback Registration, the Company will use commercially-reasonable
efforts to effect the registration and the sale of the securities to be sold
therein in accordance with the intended method of distribution thereof and will:
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 8
(a) prepare and file with the Commission at the earliest practicable
time, but, with respect to a Demand Registration in no event later that 75
days after the Demand, a registration statement with respect to such
securities, and use commercially-reasonable efforts to cause such
registration statement to become effective at the earliest practicable
time;
(b) permit a representative of the Stockholders, the underwriters, if
any, and any attorney or accountant retained by such Stockholders or
underwriter to participate, at each such person's own expense, in the
preparation of the registration statement, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant
in connection with the registration; provided, however, that such
representatives, underwriters, attorneys or accountants enter into a
confidentiality agreement, in form and substance reasonably satisfactory to
the Company, prior to the release or disclosure of any such information;
(c) prepare and file with the Commission such amendments and
post-effective amendments to the registration statement and supplements to
the prospectus used in connection therewith as may be required by the
rules, regulations or instructions applicable to the registration form used
by the Company, or by the Securities Act or rules and regulations
thereunder, as may be necessary to keep such registration statement
continuously effective for a period of 120 days in the case of a Demand
Registration and 90 days in the case of a Piggyback Registration or, if
less in each case, the period in which the Stockholders actually complete
the distribution described in the registration statement relating thereto
(it being understood by the Stockholders that the Company will not be
obligated to register any Registrable Stock on a "shelf" registration
pursuant to Rule 415 as promulgated pursuant to the Securities Act (or any
successor or similar rule) or otherwise to register Registrable Stock on a
continuous or delayed basis);
(d) at least three (3) days prior to the filing of any registration
statement or prospectus, any amendment or supplement to such registration
statement or prospectus or any document that is to be incorporated by
reference into such registration statement or prospectus, furnish a copy
thereof to the Stockholders or their counsel;
(e) deliver to the Stockholders and the underwriters, if any, without
charge, as many copies of each prospectus (and each preliminary prospectus)
as they may reasonably request (the Company hereby consenting to the use of
each such prospectus (or preliminary prospectus) by the Stockholders and
the underwriters, if any, in connection with the offering and sale of the
Registrable Stock covered by such prospectus (or preliminary prospectus))
and a reasonable number of copies of the then-effective registration
statement and any post-effective amendments thereto and any supplements to
the prospectus, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(f) use commercially-reasonable efforts to register or qualify such
Registrable Stock under such other securities or blue sky laws of such
jurisdictions as the
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 9
Stockholders reasonably request and keep such registration or qualification
effective during the period set forth in Section 3.6(c), and do any and all
other acts and things that may be reasonably necessary or advisable to
enable the Stockholders to consummate the disposition in such jurisdictions
of the Registrable Stock owned by the Stockholders; provided, however, that
the Company will not be required (i) to qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this clause, (ii) to subject itself to taxation to which it is not
otherwise subject in any such jurisdiction, (iii) to consent to general
service of process in any such jurisdiction or (iv) to comply with
requirements under so-called "fair, just and equitable standards" under
state securities laws;
(g) notify the Stockholders, at any time that a prospectus covered by
a registration statement filed pursuant to a Demand Registration or a
Piggyback Registration in which the Stockholders participate is required to
be delivered under the Securities Act, of the happening of any event of
which it has knowledge and as a result of which the prospectus included in
such registration statement, as then in effect, would include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and, at the
request of the Stockholders, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
Stockholders, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(h) cause all securities covered by such registration statement to be
listed on each securities exchange on which similar securities issued by
the Company are then listed and to be qualified for trading on each system
on which similar securities issued by the Company are from time to time
qualified;
(i) provide a transfer agent and registrar for all securities covered
by such registration statement not later than the effective date of such
registration statement and thereafter maintain such a transfer agent and
registrar;
(j) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as may be
reasonably required to expedite or facilitate the disposition of the
securities covered by such registration statement;
(k) otherwise use commercially-reasonable efforts to comply with the
provisions of the Securities Act and all applicable rules and regulations
of the Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement, satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder,
covering a period of at least twelve (12) months beginning with the first
day of the Company's first full calendar quarter after the effective date
of the registration statement; and
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 10
(l) upon the issuance of any stop order suspending the effectiveness
of a registration statement, or of any order suspending or preventing the
use of any related prospectus or suspending the qualification of any
securities included in such registration statement for sale in any
jurisdiction, the Company will use commercially-reasonable efforts promptly
to obtain the withdrawal of such order.
Each Stockholder agrees that upon receipt of any notice from the Company of the
happening of any event described in Section 3.6(g), he, she or it will
discontinue its disposition of securities pursuant to such registration
statement until it receives copies of the supplemented or amended prospectus
contemplated by Section 3.6(g) and, if so directed by the Company, will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Stockholder's possession of the prospectus that was in
effect at the time of receipt of such notice. If the Company gives such notice
under Section 3.6(g), the period specified in Section 3.6(c) for maintaining the
effectiveness of the registration will be extended by the number of days during
the period from and including the date of the giving of such notice to and
including the date when each Stockholder selling securities covered by such
registration statement receives a copy of the supplemented or amended prospectus
contemplated by Section 3.6(g).
3.7. Registration Expenses. The Company will pay the Registration Expenses
(as defined below) in connection with the Demand Registration and the Piggyback
Registrations in which the Stockholders are entitled to participate pursuant to
this Agreement. All other expenses will be paid by the holders of securities
included in such registrations, pro rata among such holders on the basis of the
number of shares of stock of each such holder included in the registration. The
term "Registration Expenses" means any expenses incident to the Company's
performance of or compliance with this Article III, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and expenses of counsel for the Company and all independent certified
public accountants, expenses of the underwriters (excluding discounts and
commissions, which will be paid by the Stockholders and any other selling
holders out of the proceeds of the offering to the extent that they participate
in an underwritten sale of their securities) and the fees and expenses of any
other persons retained by the Company in connection with the registration.
3.8. Indemnification.
(a) Indemnification by the Company. With respect to a registration of
Registrable Stock pursuant to this Agreement, the Company agrees to
indemnify, to the extent permitted by law, each Stockholder (and, with
respect to any Stockholder that is not a natural person, its officers,
directors and each person who controls (within the meaning of the
Securities Act) such Stockholder) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement
of material fact contained in any registration statement, prospectus or
preliminary prospectus in which such Stockholder is participating (or any
amendment thereof or supplement thereto) or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by any one
or more Stockholders for use therein.
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 11
(b) Indemnification by the Stockholders. With respect to a
registration of Registrable Stock pursuant to this Agreement, each
Stockholder participating in such registration will furnish to the Company
in writing such information and affidavits as the Company may reasonably
request for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the
underwriters, the Company, and the other selling stockholders and their
respective directors, officers and controlling persons against all losses,
claims, damages, liabilities and expenses caused by any untrue or alleged
untrue statement of material fact contained in the registration statement,
prospectus or preliminary prospectus (or any amendment thereof or
supplement thereto) or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, but only to
the extent that such untrue statement or omission is contained in any
written information or affidavit so furnished in writing by such
Stockholder in connection with such registration statement; provided,
however, that each Stockholder's obligation to indemnify will be individual
to such Stockholder and will be limited to the net amount of proceeds
received by such Stockholder from the sale of Registrable Stock pursuant to
such registration statement.
(c) Notice; Defense of Claims. Any party entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
(d) Contribution. If the indemnification provided for herein is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense
referred to herein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, will contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other, in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party will be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 12
omission. The obligation of each Stockholder to contribute will be
individual to such Stockholder and will be limited to the amount by which
the net amount of proceeds received by such Stockholder from the sale of
Registrable Stock exceeds the amount of losses, liabilities, damages and
expenses that the Stockholder has otherwise been required to pay by reason
of such statements or omissions.
(e) Survival. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the
registration and sale of any securities and the expiration or termination
of this Agreement.
(f) Underwriting Agreement. To the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in
conflict with the indemnification provisions of this Agreement, the
provisions of the underwriting agreement will control.
3.9. Controlling Person. If any such registration or comparable statement
refers to any Stockholder by name or otherwise as the holder of any securities
of the Company and if, in the reasonable, good faith judgment of such
Stockholder, such Stockholder is or might be deemed to be a controlling person
of the Company, such Stockholder will have the right to (a) participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, that in the
reasonable judgment of such Stockholder and his, her or its counsel should be
included, (b) require the inclusion in such registration statement of language,
in form and substance reasonably satisfactory to such Stockholder, to the effect
that the holding of such securities by such Stockholder is not to be construed
as a recommendation by such Stockholder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such Stockholder will assist in meeting any future financial requirements of the
Company or (c) require, if such reference to such Stockholder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Stockholder; provided,
however, that with respect to this clause (c), such Stockholder must furnish to
the Company an opinion of counsel to such effect, which opinion of counsel must
be reasonably satisfactory to the Company.
3.10. Market Stand-Off Agreement. For a period of 180 days following the
effective date of any underwritten public offering of equity securities by the
Company (or for such shorter period as may be allowed by the managing
underwriter or underwriters of such offering), the Stockholders will agree to
such restrictions as such managing underwriter or underwriters may request with
respect to the sale, transfer or other disposition of the Company's equity
securities (or derivatives or any interest therein), provided that all directors
and executive officers of the Company agree to similar restrictions. In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the CCO Common or other equity securities of the
Stockholders until the end of such period.
3.11. No Inconsistent Agreements. The Company may not, without the prior
written consent of the Stockholders holding a majority of the Registrable Stock,
hereafter enter into any
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 13
agreement with respect to its securities that grants registration rights to any
holders of equity securities that would violate the rights granted to the
Stockholders in this Agreement.
ARTICLE IV.
RULE 144
With a view to making available to the Stockholders the benefits of Rule 144
promulgated under the Securities Act (or any other similar rule or regulation of
the Commission that may at any time permit the investors to sell securities of
the Company to the public without registration but excluding Rule 144A
promulgated under the Securities Act or any successor or similar rule as may be
enacted by the Commission from time to time) ("Rule 144"), the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) not terminate its status as an issuer required to file reports
under the Exchange Act, even if the Exchange Act or the rules and
regulations thereunder would otherwise permit such termination;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act and such reports and other documents as is required for the applicable
provisions of Rule 144; and
(d) furnish to the Stockholders so long as such Stockholders own any
Registrable Stock, promptly upon request, such information as may be
reasonably requested to permit the Stockholders to sell such securities
pursuant to Rule 144 without registration.
This Article IV will terminate and be of no further force or effect on the first
date that the Stockholders are able to sell all of the shares of Registrable
Stock owned by them under Rule 144(k).
ARTICLE V.
MISCELLANEOUS PROVISIONS.
5.1. Termination. This Agreement will terminate and be of no further force
or effect (except as provided in Section 3.8(e)) upon the earliest to occur of
(a) the written agreement of the Company and each other party to this Agreement
at the time of such agreement, (b) the date on which no securities are
Restricted Securities or Registrable Stock, and (c) the ten-year anniversary of
the date of this Agreement.
5.2. Legends on Certificates. During the term of this Agreement, each
certificate or other instrument representing shares of Restricted Securities
will bear, in addition to any legend required pursuant to the terms of Section
2.2, a legend in substantially the following form:
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 14
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SALE, ASSIGNMENT,
TRANSFER, PLEDGE OR OTHER DISPOSITION THEREOF ARE SUBJECT TO CERTAIN
RESTRICTIONS AND AGREEMENTS CONTAINED IN A STOCK TRANSFER RESTRICTION AND
REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL ___, 2006, BY AND AMONG
THE COMPANY AND CERTAIN OF ITS STOCKHOLDERS. A COPY OF SUCH AGREEMENT WILL
BE FURNISHED BY THE COMPANY TO THE RECORD HOLDER OF THIS CERTIFICATE
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE
OF BUSINESS OR REGISTERED OFFICE."
The Company will make a notation on its records and give instructions to any
transfer agent of its equity securities to implement the restrictions on
transfer established in this Agreement. Each Stockholder agrees and consents to
the entry of stop transfer instructions by the Company or any such transfer
agent in order to enforce the restrictions on transfer established in this
Agreement.
5.3. Notices. All notices and other communications under this Agreement
must be in writing and will be deemed given (a) when delivered personally or by
courier service, (b) on the third business day after being mailed by certified
mail, return receipt requested or (c) upon transmission and confirmation of
receipt by a facsimile operator if sent by facsimile, to the parties at the
following addresses or facsimile numbers (or to such other address or facsimile
number as such party may have specified by notice given to the other party
pursuant to this provision):
If to the Company: Clear Channel Outdoor, Inc.
2850 E. Camelback Road
Phoenix, Arizona 85016
Facsimile: (602) 957-8602
Attention: President
with a copy (which will not constitute notice) to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205-3792
Facsimile: (210) 270-7205
Attention: Daryl L. Lansdale, Jr.
If to any Stockholder: To the address for such Stockholder on the books and
records of the Company as the same may be changed
from time to time by notice from such Stockholder to
the Company in accordance with this Section 5.3.
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 15
with a copy (which will not constitute notice) to:
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Facsimile: (215) 963-5001
Attention: Richard B. Aldridge
5.4. No Third Party Beneficiaries. Nothing in this Agreement will create,
confer or be deemed to create or confer any third party beneficiary rights in
any person or other legal entity not party to this Agreement.
5.5. Assignment. The rights and obligations of the Stockholders pursuant to
this Agreement are not assignable except that such rights and obligations as
they relate to a particular security will be automatically assigned to any
transferee of such security if such security was Transferred in a Permitted
Transfer; provided, however, that the rights under Article III and Article IV
with respect to any securities subject to a subsequent Indirect Transfer will be
null and void and of no further force and effect upon the consummation of such
Indirect Transfer. The Company may assign its rights and obligations under this
Agreement to any Affiliate or, with the prior written consent of the
Stockholders holding a majority of the Restricted Securities then outstanding,
to any other person or other legal entity. Any attempted assignment of such
rights and obligations in violation of this Section 5.5 will be null and void.
The provisions of this Agreement will be binding upon and inure to the benefit
of the parties and their respective successors and permitted assigns.
5.6. Amendment. No amendment, modification or supplement of or to this
Agreement will be effective unless made in writing and signed by the Company and
the Stockholders holding a majority of the Restricted Securities then
outstanding.
5.7. Waivers. No waiver of any provision of this Agreement, or consent to
any departure from its terms, will be effective unless made in writing and
signed by the party giving such waiver or consent. No action (other than a
waiver) taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, will be deemed to constitute a
waiver, by the party taking such action, of the other party's compliance with
any covenant or agreement contained in this Agreement. No delay or omission on
the part of any party in exercising any right or remedy under this Agreement
will operate as a waiver thereof or of any other right or remedy. No waiver by
any party of any right or remedy under this Agreement on any one occasion will
be deemed a bar to or waiver of the same or any other right or remedy on any
future occasion. No partial exercise of any right or remedy under this Agreement
by any party will preclude any further exercise thereof or the exercise of any
other right or remedy.
5.8. Further Assurances. Each party to this Agreement hereby covenants and
agrees, without the necessity of any further consideration, to execute and
deliver any and all such further documents and take any and all such other
actions as may be reasonably necessary or appropriate to carry out the intent
and purposes of this Agreement.
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 16
5.9. Construction of Provisions.
(a) Fair Meaning. Every term and provision of this Agreement will be
construed simply according to its fair meaning and not strictly for or
against any party because such party or its legal counsel drafted this
Agreement or such provision.
(b) Time. Time is of the essence with respect to this Agreement.
(c) Variation of Pronouns. All pronouns and any variations thereof
will be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the person may require.
(d) Headings. The headings in this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
(e) References. Except as otherwise specifically provided, any
reference to any article or section will be deemed to refer to such article
or section of this Agreement.
(f) Severability. If any provision of this Agreement, as applied to
any party or to any circumstance, is held invalid, illegal or unenforceable
by any court of competent jurisdiction, (i) such provision, as applied to
such party or such circumstance, is hereby deemed modified to give effect
to the original written intent of the parties to the greatest extent
consistent with being valid and enforceable under applicable law, (ii) the
application of such provision to any other party or to any other
circumstance will not be affected or impaired thereby and (iii) the
validity, legality and enforceability of the remaining provisions of this
Agreement will remain in full force and effect.
5.10. Business Days. If the last or appointed day for the taking of any
action required under this Agreement, or the expiration of any right granted in
this Agreement, is a Saturday, Sunday or legal holiday in either the State of
Pennsylvania or the State of Texas, then such action may be taken or such right
may be exercised on the next succeeding day that is not a Saturday, Sunday or
legal holiday in either the State of Pennsylvania or the State of Texas.
5.11. Entire Agreement. This Agreement (together with the Stock Purchase
Agreement) represents, and is intended to be, a complete statement of all of the
terms and the arrangements between the Company and the Stockholders with respect
to the matters provided for herein, supersedes any and all previous oral or
written and all contemporaneous oral agreements, understandings, negotiations
and discussions between the Company and the Stockholders with respect to those
matters.
5.12. Remedies. All remedies under this Agreement are cumulative and are
not exclusive of any other remedies provided by applicable law. The parties
agree and acknowledge that money damages may not be an adequate remedy for any
breach by a party of the provisions of this Agreement and that the any party may
in its sole discretion apply to a court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief to enforce or prevent violation of
the provisions of this Agreement.
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 17
5.13. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware without reference to the
principles of conflict of laws or any other principle that could result in the
application of the laws of any other jurisdiction.
5.14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
will be one and the same instrument.
* * * REMAINDER OF PAGE INTENTIONALLY LEFT BLANK * * *
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - PAGE 18
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date and year first written above.
COMPANY:
CLEAR CHANNEL OUTDOOR HOLDINGS, INC., A
DELAWARE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRINCIPAL STOCKHOLDERS:
MARK T. LIEBERMAN
----------------------------------------
DEBORAH S. LIEBERMAN
----------------------------------------
THE TRUST (LIVING) OF MARIANNE LIEBERMAN
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE TRUST (LIVING) OF CAROLYN M. GRANT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - SIGNATURE PAGE 1
ADDITIONAL STOCKHOLDERS:
MOLLY A. LIEBERMAN
----------------------------------------
KAREN LIEBERMAN-DALY
----------------------------------------
RICHARD FRICK
----------------------------------------
LIEBERMAN BUSINESS TRUST, A PENNSYLVANIA
BUSINESS TRUST
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STOCK TRANSFER RESTRICTION AND REGISTRATION RIGHTS AGREEMENT - SIGNATURE PAGE 2